Exhibit 10.2


 


[*CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH
PORTION, WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [*], HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]


 


AVANT IMMUNOTHERAPEUTICS, INC.


 


COMMON STOCK PURCHASE AGREEMENT


 


THIS COMMON STOCK PURCHASE AGREEMENT
(the “Agreement”)
is made as of May     , 2008, by and between AVANT IMMUNOTHERAPEUTICS, INC., a Delaware
corporation (the “Company”)
and PFIZER VACCINES LLC, a
Delaware limited liability company (“Pfizer”).


 


WHEREAS, the Company desires to
issue, and Pfizer desires to acquire, stock of the Company as herein described,
on the terms and conditions hereinafter set forth;


 


NOW, THEREFORE, IT IS AGREED
between the parties as follows:


 


1.                                      Purchase
and Sale of Stock.  Pfizer hereby
agrees to purchase from the Company, and the Company hereby agrees to sell to
Pfizer, an aggregate of 781,250 shares of the Common Stock of the Company (the “Shares”) at $12.80
per share, for an aggregate purchase price of $10,000,000.00, payable in cash.  The closing hereunder, including payment for
and delivery of the Shares shall occur at the offices of the Company
immediately following the execution of this Agreement, or at such other time
and place as the parties may mutually agree.


 


2.                                      Limitations
on Transfer.  Pfizer shall not
assign, hypothecate, donate, encumber or otherwise dispose of any interest in
the Shares except in compliance with the provisions herein and applicable securities
laws.  The Company shall not be required (a) to
transfer on its books any of the Shares which shall have been transferred in
violation of any of the provisions set forth in this Agreement or (b) to
treat as owner of such shares or to accord the right to vote as such owner or
to pay dividends to any transferee to whom such shares shall have been so
transferred.


 


3.                                      Restrictive
Legends.  All certificates
representing the Shares shall have endorsed thereon (a) any legend
required by appropriate blue sky officials and (b) a legend in
substantially the following form (in addition to any other legend which may be
required by other agreements between the parties hereto):


 


“THE SHARES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AS AMENDED (THE “ACT”).  THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED UNLESS THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT COVERING SUCH SHARES OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL 


 

















 


REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.”


 


4.                                      Company Representations.  In connection with the sale and purchase of
the Shares, the Company represents and warrants to Pfizer, as of the date
hereof and as of the date of the closing contemplated by Section 1, the
following:


 


4.1                               The
Company (a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, (b) has all corporate power
and authority required to own, lease and operate its properties and to conduct
its business as presently conducted and (c) is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified would
not have a Material Adverse Effect (as defined below).


 


For the purposes of this
Agreement, “Material Adverse Effect”
means, individually or collectively, a material adverse effect on, or a
material adverse change in, or a group of such effects on or changes in, (i) the
business, financial condition, results of operations, assets or liabilities of
the Company and its Subsidiaries (as defined in Section 4.2), taken as a
whole, or (ii) the ability of the Company to perform its obligations under
or with respect to this Agreement.


 


4.2                               Each
Subsidiary (as defined below) of the Company (a) has been duly
incorporated or formed or organized, (b) is validly existing and in good
standing under the laws of the jurisdiction of its incorporation or other
formation, (c) has the corporate or other power and authority to own,
lease and operate its properties and to carry on its business as currently conducted
and (d) is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a Material
Adverse Effect.


 


For the purposes of this Agreement, “Subsidiary”
means any corporation or other legal entity of which the Company or Pfizer, as
the context requires, owns, directly or indirectly, stock or other equity
interests, in sufficient amounts to elect a majority of the board of directors
or other governing body or other persons performing similar functions of such
corporation or other legal entity.


 


4.3                               The
authorized capital stock of the Company consists of 300,000,000 shares of
Company common stock, par value $.001 per share (“Common
Stock”) of which there were 14,926,994 shares issued and
outstanding, 37,037 warrants issued and outstanding and 3,000,000 shares of
Company preferred stock, none of which were issued and outstanding, in each
case as of May 19, 2008.  All
outstanding shares of the Common Stock are duly authorized, validly issued,
fully paid and non-assessable and are not subject to preemptive rights created
by statute, the Company’s certificate of incorporation or bylaws, or any
agreement or document to which the Company is a party or by which it is
bound.  As of May 19, 2008, the
Company had reserved an aggregate of 2,946,913 shares of Common Stock for
issuance to employees, directors 


 


2

















 


and consultants pursuant
to the Company’s stock option plans, under which options for an aggregate of
2,463,579 shares were outstanding.


 


4.4                               The
Company has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and this Agreement has been duly
authorized and validly executed and delivered by the Company.  All corporate actions on the part of the Company
necessary for the authorization, execution, delivery of and the performance of
all obligations of the Company under this Agreement and the authorization,
issuance, reservation for issuance and delivery of all of the Shares being sold
hereunder have been taken.  When issued
in accordance with the provisions of this Agreement, the Shares will be validly
authorized and issued, fully paid and nonassessable, and will not be subject to
any mortgage, lien, pledge, security interest, charge or similar
encumbrance.  Based in part upon the
representations of Pfizer in this Agreement, the Shares will be issued in
compliance with all applicable United States federal and state securities laws.


 


4.5                               This
Agreement is legally binding upon the Company and enforceable against the
Company in accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditor’s rights, (b) general
principles of equity that restrict the availability of equitable remedies and (c) to
the extent that the enforceability of the indemnification provisions set forth
in Section 6.11 may be limited by applicable law.  The execution, delivery and performance of
this Agreement by the Company do not (i) conflict with its certificate of
incorporation or bylaws, (ii) conflict with, or constitute a breach of or
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind (a “Lien”) on the Shares or any property
or asset of the Company or any of its Subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its Subsidiaries is a party or by which it or any of its
properties may be bound or (iii) violate any law, regulation or decree of
any court, agency, department or other instrumentality of any foreign, federal,
state, county, city or other political subdivision (each a “Governmental Authority”) having
jurisdiction over it, except in the case of clauses (ii) and (iii) for
conflicts, breaches, defaults, violations or Liens which, either individually
or in the aggregate, would not have a Material Adverse Effect.  All necessary consents, approvals and
authorizations of, and all filings with, all Governmental Authorities and other
persons required to be obtained or made by the Company to enter into, or
perform its obligations under, this Agreement have been obtained or made (as
the case may be), except for such consents, approvals or authorizations that
must be made after the date hereof, which will be obtained or made (as the case
may be) in a timely manner.


 


4.6                               Except
as disclosed in the SEC Documents (as defined below), there is (a) no
action, suit or governmental proceeding pending or, to the knowledge of the
Company, threatened in writing (i) against or that names as a party the
Company or its Subsidiaries or (ii) which questions the validity of this
Agreement or any action taken or to be taken by the Company pursuant to this
Agreement or in connection with the transactions contemplated hereby and (b) no
fact or circumstance known to the Company that would reasonably be expected to
give rise to any such action, suit, proceeding, inquiry or investigation.  Neither the Company nor 


 


3

















 


any of its Subsidiaries
is subject to any judgment, order or decree that materially restricts its
business practices or its ability to acquire any property or conduct its
business in any area.


 


4.7                               The
Company is not (a) in violation of its certificate of incorporation or its
bylaws, (b) to the knowledge of the Company, in material violation of any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or (c) in
default (and there exists no condition which, with the passage of time or
otherwise, would constitute a default) in the performance of any material
contract to which it is a party or by which it may be bound.  No notice, charge, claim, action or assertion
has been received by the Company alleging such a violation or default.


 


4.8                               The
financial statements of the Company and the related notes contained in (a) the
Company’s annual report on Form 10-K for the year ended December 31,
2007, (b) any Quarterly Reports on Form 10-Q, and (c) Current
Reports on Form 8-K filed subsequent thereto (excluding any and all
financial information furnished and not filed in a Current Report on Form 8-K,
by press release or otherwise), each as filed with the Securities and Exchange
Commission (the “SEC”) by the Company
(collectively, the “SEC Documents”) have been
prepared from and are in accordance with the books and records of the Company
and present fairly, in accordance with United States generally accepted
accounting principles (“GAAP”), the
financial condition of the Company as of the dates indicated, and the results
of its operations and cash flows for the periods therein specified.  Such financial statements (including the
related notes) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods therein specified and have complied, as
of their respective dates, in all material respects with the applicable
accounting requirements and rules and regulations of the SEC.  Except as disclosed and adequately reserved
for in such financial statements (other than such draw downs as have been made
under the Company’s existing equipment credit lines), the Company has no
material debts, liabilities or (whether accrued or fixed, known or unknown,
absolute or contingent, matured or unmatured, or determined or
determinable).  Other than as disclosed
in the SEC Documents, since December 31, 2007, the business of the Company
has been conducted in the ordinary course and there has not been any change or event that has had, or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


4.9                               The
Company has filed in a timely manner all documents that the Company was
required to file under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Nasdaq Marketplace
Rules during the twelve (12) months preceding the date of this
Agreement.  The SEC Documents complied in
all material respects with the requirements of the Securities Act of 1933, as
amended (the “Securities Act”), and the
Exchange Act and the rules and regulations of the SEC promulgated
thereunder as of their respective filing dates, and none of the SEC Documents,
including any financial statements or schedules included or incorporated by
reference therein, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.  The Chief Executive Officer and the Chief
Financial Officer of the Company have signed, and the Company has furnished to
the SEC, all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act of 2002 (the “Certifications”). 
The Certifications have not been modified or withdrawn, and neither the
Company nor any of it officers has received notice 


 


4

















 


from any governmental
entity questioning or challenging the accuracy, completeness, content, form or
manner of filing or submission of the Certifications.


 


4.10                        Neither
the Company nor any other person or entity authorized by the Company to act on
its behalf has engaged in a general solicitation or general advertising (within
the meaning of Regulation D of the Securities Act) that would adversely affect
reliance by the Company on an exemption from registration for the transactions
contemplated hereby or would require registration of the Shares under the
Securities Act.


 


5.                                      Pfizer
Representations.  In connection with
the sale and purchase of the Shares, Pfizer represents and warrants to the
Company, as of the date hereof and as of the date of the closing contemplated
by Section 1, the following:


 


5.1                               Pfizer
(a) is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware and (b) has all
limited liability company power and authority required to own, lease and
operate its property and to conduct its business as presently conducted.


 


5.2                               Pfizer
has all requisite limited liability company power and authority to execute,
deliver and perform its obligations under this Agreement, and this Agreement
has been duly authorized and validly executed and delivered by Pfizer.  All limited liability company actions on the
part of Pfizer necessary for the authorization, execution, delivery of and the
performance of all obligations of Pfizer under this Agreement have been taken.


 


5.3                               This
Agreement is legally binding upon Pfizer and enforceable against Pfizer in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditor’s rights, (b) general principles of
equity that restrict the availability of equitable remedies, and (c) to
the extent that the enforceability of the indemnification provisions set forth
in Section 6.11 may be limited by applicable law.  The execution, delivery and performance of
this Agreement by Pfizer do not (i) conflict with its certificate of
formation or operating agreement, (ii) conflict with, or constitute a
breach of or default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien
on any property or asset of Pfizer pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which Pfizer or
any of its Subsidiaries is a party or by which it or any of its properties may
be bound or (iii) violate any law or regulation of any Governmental
Authority having jurisdiction over it, except in the case of clauses (ii) and
(iii) for conflicts, breaches, defaults, violations or Liens which, either
individually or in the aggregate, would not be reasonably expected to
materially and adversely impair or restrict Pfizer’s ability to perform its
obligations hereunder or to consummate the transactions contemplated
hereby.  All necessary consents,
approvals and authorizations of, and all filings with, all Governmental
Authorities and other persons required to be obtained or made by Pfizer to
enter into, or perform its obligations under, this Agreement have been obtained
or made (as the case may be), except for such consents, approvals or
authorizations that must be made after the date hereof, which will be obtained
or made (as the case may be) in a timely manner.


 


5

















 


5.4                               This
Agreement is made with Pfizer in reliance upon Pfizer’s representation to the
Company, which by Pfizer’s execution of this Agreement Pfizer hereby confirms,
that the Shares it is or may be purchasing will be acquired for investment for
Pfizer’s own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Pfizer has no present
intention of selling, granting any participation in or otherwise distributing
the same.  By executing this Agreement,
Pfizer further represents that Pfizer does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person, or to any third person, with respect to the
Shares.


 


5.5                               Pfizer
understands that the Shares it is or may be purchasing are characterized as “restricted
securities” under the federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations may be resold without
registration under the Securities Act only in certain limited
circumstances.  Pfizer agrees that it
will not sell or otherwise dispose of any of the Shares unless such sale or
other disposition has been registered or is exempt from registration under the
Securities Act and has been registered or qualified or is exempt from
registration or qualification under applicable state securities laws.


 


5.6                               Pfizer
is and will be an “accredited investor” as defined in Rule 501 of
Regulation D promulgated under the Securities Act.  Pfizer’s financial condition is such that it
is able to bear the risk of holding the Shares for an indefinite period of time
and the risk of loss of its entire investment in the Shares.  Pfizer has been afforded the opportunity to
ask questions of and receive answers from the management of the Company
concerning this investment and is able to evaluate the risks and merits of its
investment in the Company.


 


6.                                      Registration
Rights.


 


6.1                               Definitions.  For purposes of this Section 6, the
following terms shall have the following respective meanings:


 


(a)                                  “Register,” “registered”
and “registration”  refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.


 


(b)                                  “Registrable Securities” shall mean (i) the
Shares issued hereunder, and (ii) any Common Stock issued as (or issuable
upon the conversion or exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of the shares referenced in clause (i) above, excluding
in all cases, however, any Registrable Securities sold by a person in a
transaction in which its rights under this Section 6 are not assigned.


 


(c)                                  “Registration Expenses”  shall mean all expenses incurred by
the Company in complying with Section 6.2 or 6.3 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company and blue sky fees and expenses.


 


6

















 


(d)                                  “Selling Expenses”  shall mean all underwriting
discounts and selling commissions applicable to a sale of Registrable
Securities pursuant to Section 6.4.


 


6.2                               Piggyback
Registrations.  The Company shall notify Pfizer in
writing at least ten (10) days prior to the filing of a registration
statement under the Securities Act for purposes of a public offering of
securities of the Company (excluding registration statements relating to
employee benefit plans, the offer and sale of debt securities, with respect to
corporate reorganizations or other transactions under Rule 145 of the
Securities Act or with respect to a solely primary offering of securities of
the Company) and will afford Pfizer an opportunity to include in such
registration statement all or part of the Registrable Securities held by
Pfizer.  In the event that Pfizer desires
to include in any such registration statement all or any part of the Registrable
Securities held by it, it shall, within ten (10) days after the
above-described notice from the Company, so notify the Company in writing.  Such notice shall state the intended method
of disposition of the Registrable Securities by Pfizer.  If Pfizer decides not to include all of the
Registrable Securities in a registration statement filed by the Company, Pfizer
shall nevertheless continue to have the right to include any remaining
Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to secondary offerings
of its securities, all upon the terms and conditions set forth herein.


 


6.3                               Demand
Form S-3 Registrations.  If the
Company receives a request from Pfizer that the Company effect a registration
on Form S-3 under the Securities Act (or any successor or similar
registration form under the Securities Act) (“Form S-3”) with respect to all or a
part of the Registrable Securities held by Pfizer, then the Company, as soon as
practicable, shall use its commercially reasonable efforts to effect such
registration as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request; provided, however, that
the Company shall not be obligated to effect any such registration pursuant to
this Section 6.3 (i) if Form S-3 is not then available for such
offering by Pfizer; (ii) if Pfizer proposes to sell Registrable Securities
at an aggregate price to the public (net of Selling Expenses) of less than  One Million Dollars ($1,000,000); (iii) if the Company
furnishes to Pfizer a certificate signed by the chief executive officer of the
Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be materially detrimental to the Company and its
stockholders for such Form S-3 registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than  thirty
(30) days after receipt of the request of Pfizer under this Section 6.3; provided, however, that
the Company shall not invoke this right more than once in any twelve (12) month
period; and provided further that the Company shall not register any securities
for its own account or that of any other stockholder during such thirty (30)
day period other than pursuant to a registration relating to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan; a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities held by
Pfizer; or a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt securities that are also being
registered; or  (iv) if the Company has,
within the twelve (12) month period preceding the date of such request, already
effected two (2) registrations on Form S-3 for Pfizer pursuant to
this Section 6.3.


 


7

















 


6.4                               Underwriting.


 


(a)                                  If
the registration statement under which the Company gives notice pursuant to Section 6.2
is for an underwritten offering, the Company shall so advise Pfizer.  In such event, Pfizer’s right to be included
in a registration pursuant to Section 6.2 shall be conditioned upon Pfizer’s
participation in such underwriting and the inclusion of any Registrable
Securities to be sold by Pfizer in the underwriting to the extent provided
herein.  In such event, Pfizer shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.  If the total number of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the number of securities to be sold (other than by the
Company) that the underwriters in their reasonable discretion determine is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, that the underwriters in their sole discretion
determine will not jeopardize the success of the offering.  In no event shall any Registrable Securities
be excluded from such offering unless all securities of the Company held by
other stockholders have been first excluded. 
If Pfizer disapproves of the terms of any such underwriting, Pfizer may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least five (5) business days prior to the
effective date of the registration statement or the date of an offering under a
registration statement that contemplates a distribution of securities on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act
(a “Shelf Registration Statement”), as
applicable.  Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration.


 


(b)                                  If,
pursuant to Section 6.3, Pfizer intends to distribute the Registrable
Securities covered by its request for registration by means of an underwriting,
Pfizer shall so advise the Company as a part of its request made pursuant to Section 6.3.  The underwriter or underwriters shall be
selected by Pfizer, subject to the approval of the Company, such approval not
to be unreasonably withheld or delayed. 
Pfizer, together with the Company, shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting.


 


6.5                               Right
to Terminate Registration.  The
Company shall have the right to terminate or withdraw any registration
initiated by it pursuant to Section 6.2 or 6.3 prior to the effectiveness
of such registration whether or not Pfizer has elected to include Registrable
Securities in such registration.  The
Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 6.6 hereof.


 


6.6                               Expenses
of Registration.  Except as
specifically provided herein, all Registration Expenses incurred in connection
with any registration pursuant to Section 6.2 or 6.3 herein shall be borne
by the Company; provided, however,
that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 6.3 if the registration
request is subsequently withdrawn at the request of Pfizer; provided  further that
if, at the time of such withdrawal, Pfizer has learned of a material adverse
change in the condition, business or prospects of the Company from that known
to Pfizer at the time of its request and has withdrawn the request with
reasonable promptness after learning of such information, then Pfizer shall not
be required to pay any of such expenses. 
All Selling Expenses incurred in connection with any registrations
hereunder shall be borne by the holders of the securities so sold pro rata on the basis of the number of shares so sold.


 


8
















 


6.7                               Obligations
of the Company.  Whenever required to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:


 


(a)                                  Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such
registration statement to become effective as soon as practicable.


 


(b)                                  Subject
to Section 6.7(a), use its commercially reasonable efforts to prepare and
file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all of the Registrable Securities
held by Pfizer have been sold.


 


(c)                                  Furnish
to Pfizer such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as Pfizer may reasonably request in order to facilitate the
disposition of Registrable Securities.


 


(d)                                  Use
its commercially reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by Pfizer; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.


 


(e)                                  Advise
Pfizer promptly after it shall receive notice or obtain knowledge of the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of a registration statement or of the initiation of any proceeding for that
purpose; and it will promptly use its commercially reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal at the
earliest possible moment if such stop order should be issued.


 


(f)                                    In
the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the underwriter(s) of such offering.


 


(g)                                 Notify
Pfizer at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.


 


(h)                                 Cause
all such Registrable Securities registered under such registration statement to
be listed on each securities exchange on which the Common Stock of the Company
is then listed.


 


9

















 


(i)                                    Use its commercially reasonable efforts to
furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through underwriters, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and (ii) a letter dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters
in an underwritten public offering addressed to the underwriters, if any.


 


6.8                               Obligations
of Pfizer.


 


(a)                                  In
the event: (i) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of a registration
statement filed pursuant to Section 6.2 or 6.3 for amendments or
supplements to such registration statement or related prospectus or for
additional information so that such registration statement will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or otherwise fail to comply with the applicable rules and regulations of
the federal securities laws; (ii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of such registration statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, provided
that, considering the advice of counsel, the Company reasonably believes that
it must qualify in such jurisdiction; (iv) of any event or circumstance
that, considering the advice of counsel, the Company reasonably believes
necessitates the making of any changes in such registration statement or
related prospectus, or any document incorporated or deemed to be incorporated
therein by reference, so that, in the case of such registration statement, it
will not contain any untrue statement of a material fact or any omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of a related
prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (v) that the Company reasonably believes,
considering the advice of counsel, that the Company may, in the absence of a
suspension described hereunder, be required under state or federal securities
laws to disclose any corporate development, the disclosure of which could
reasonably be expected to have a material adverse effect upon the Company, its
stockholders, a potentially material transaction or event involving the
Company, or any negotiations, discussions or proposals directly relating
thereto; then the Company shall deliver a written notice (a “Suspension Notice”)
to Pfizer to the effect of the foregoing and, upon receipt of such Suspension
Notice, Pfizer will refrain from selling any Registrable Securities pursuant to
such registration statement (a “Suspension”) until Pfizer receives copies of a
supplemented or amended prospectus prepared and filed by the Company or until
Pfizer is advised in writing by the Company that the current prospectus may be
used and Pfizer has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in any such
prospectus.  In the event of a
Suspension, the Company will use its commercially reasonable efforts to cause
the use of the prospectus so


 


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suspended to be resumed
as soon as reasonably practicable after delivery of a Suspension Notice to
Pfizer.


 


(b)                                  Provided
that a Suspension is not then in effect, Pfizer may sell the Registrable
Securities under the registration statement, provided that Pfizer arranges for
delivery of a current prospectus to the transferee of such Registrable
Securities to the extent such delivery is required by applicable law.


 


6.9                               Termination
of Registration Rights.  All
registration rights granted under this Section 6 shall terminate and be of
no further force and effect on the first to occur of the following: (a) the
sale of all of the Registrable Securities by Pfizer and (b) the fifth  anniversary of the date of this Agreement.


 


6.10                        Delay of
Registration; Furnishing Information.


 


(a)                                  Pfizer
shall not have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Section 6.


 


(b)                                  It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to Section 6.2 or 6.3 that Pfizer shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it and the intended method of disposition of such Registrable Securities as
shall be required to effect the registration of such Registrable Securities.


 


6.11                        Indemnification.  In the event any Registrable Securities
are included in a registration statement pursuant to Section 6.2 or 6.3:


 


(a)                                  To
the extent permitted by law, the Company will indemnify and hold harmless
Pfizer, the officers and directors of Pfizer, any underwriter (as defined in
the Securities Act) for Pfizer and each person, if any, who controls Pfizer or
the underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a “Violation”) by the
Company: (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law in connection with the
offering covered by such registration statement; and the Company will pay as
incurred to Pfizer, or such officer, director, underwriter or controlling
person of Pfizer, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided however,
that the indemnity agreement contained in this Section 6.11(a) shall
not apply to amounts paid in


 


11

















 


settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company, which consent shall not be unreasonably withheld,
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
Pfizer, or such officer, director, underwriter or controlling person of Pfizer.


 


(b)                                  To
the extent permitted by law, Pfizer will, if the Registrable Securities held by
Pfizer are included in a Company registration under the Securities Act,
indemnify and hold harmless the Company, each of its directors, its officers
and each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other stockholder selling securities
under such registration statement or any of such other stockholder’s partners,
directors or officers or any person who controls such stockholder, against any
losses, claims, damages or liabilities (joint or several) to which the Company
or any such director, officer, controlling person, underwriter or other such
stockholder, or partner, director, officer or controlling person of such other
stockholder may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by Pfizer specifically for use in connection with such registration;
and Pfizer will pay as incurred any legal or other expenses reasonably incurred
by the Company or any such director, officer, controlling person, underwriter
or other stockholder, or partner, officer, director or controlling person of
such other stockholder in connection with investigating or defending any such
loss, claim, damage, liability or action if it is judicially determined that
there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 6.11(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
Pfizer, which consent shall not be unreasonably withheld; provided
further, that in no event shall any indemnity under this Section 6.11(b) exceed
the net proceeds from the offering received by Pfizer.


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 6.11 of notice of
the commencement of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 6.11, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding.  The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6.11, but the omission so to
deliver written notice to the


 


12

















 


indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 6.11.


 


(d)                                  If
the indemnification provided for in this Section 6.11 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other in connection with the Violation(s) that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations.  The relative fault of
the indemnifying party and of the indemnified party shall be determined by a
court of law by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by Pfizer
hereunder exceed the net proceeds from the offering received by Pfizer.


 


(e)                                  The
obligations of the Company and Pfizer under this Section 6.11 shall
survive completion of any offering of the Registrable Securities in a
registration statement and the termination of this agreement.  No indemnifying party, in the defense of any
such claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.


 


6.12                        Assignment
of Registration Rights.  The rights
to cause the Company to register the Registrable Securities pursuant to this Section 6
may not be assigned by Pfizer other than to an affiliate of Pfizer.


 


6.13                        Amendment
of Registration Rights.  Any
provision of this Section 6 may be amended and the observance thereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Company and
Pfizer.  Any amendment or waiver effected
in accordance with this Section 6.13 shall be binding upon Pfizer and the
Company.  By acceptance of any benefits
under this Section 6, Pfizer hereby agrees to be bound by the provisions
hereunder.


 


7.                                      Rule 144
Reporting.  With a view to making
available to Pfizer the benefits of Rule 144 under the Securities
Act and any other rule or regulation of the SEC that may at any
time permit Pfizer to sell the Registrable Securities to the public without
registration or pursuant to a registration statement on Form S-3, the
Company covenants and agrees to use its commercially reasonable efforts to: (a) make
and keep public information regarding the Company available, as those terms are
understood and defined in Rule 144, until such time as Pfizer may sell all
of the Registrable Securities in compliance with Rule 144 (or any other
similar provisions then in force) without regard to the volume, manner of sale,
current public information or other requirements thereof; (b) file
with the SEC in a timely manner all reports


 


13

















 


and other documents
required of the Company under the Securities Act and the Exchange Act; and (c) furnish
to Pfizer upon written request, as long as Pfizer owns any Registrable
Securities, (i) a written statement by the Company that it has complied
with the applicable reporting requirements of Rule 144 and the Exchange
Act or that it qualifies as a registrant whose securities may be registered on Form S-3,
(ii) a copy of the Company’s most recent Annual Report on Form 10-K
or Quarterly Report on Form 10-Q and (iii) such other documents filed
with the SEC as Pfizer may reasonably request in order to avail itself of any rule or
regulation of the SEC that permits the selling of any Registrable Securities
without registration.


 


8.                                      Limitations
on Resale and Standstill.


 


8.1                               Resale.  During the Selling Period (as defined
below), Pfizer and its affiliates will not take any of the following actions: (a) sell
any Shares or other securities of the Company received on account of ownership
of such Shares (collectively, the “Limitation Securities”);
(b) transfer, assign or otherwise dispose of any of the Limitation
Securities; (c) pledge, hypothecate or otherwise create a lien on any of
the Limitation Securities; (d) loan to any person or entity any of the
Limitation Securities; (e) sell short any of the Limitation Securities; (f) acquire
a put option or grant a call option with respect to any of the Limitation
Securities; or (g) enter into any agreement concerning any of the
foregoing transactions, or otherwise facilitate any other person conducting any
of the foregoing transactions.  For
purposes of this Section 8.1, the “Selling Period”
shall mean the period beginning on the date of this Agreement and ending on the
date that is one (1) year thereafter. 
Notwithstanding the foregoing, (i) from and after the date that is
six (6) months after the date of this Agreement, Pfizer shall have the
right to sell (if otherwise permitted pursuant to an effective registration
statement and/or applicable law), during any rolling ninety (90) day period
during the Selling Period, up to ten percent (10%) of the Limitation Securities
and (ii) Pfizer shall at all times have the right to take any action
described in clauses (a) – (g) above where such action is by and
between Pfizer and an affiliate of Pfizer. 
Notwithstanding anything in this Agreement to the contrary, Pfizer shall
not sell the Limitation Securities if such sale would violate any applicable
law.


 


8.2.                            *


 


9.                                      Miscellaneous.


 


9.1                               Notices.  All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
facsimile if sent during normal business hours of the recipient, and if not
during normal business hours of the recipient, then on the next business day, (c) five
(5) calendar days after having been sent by registered or certified mail,
return receipt requested, postage prepaid or (d) one (1) business day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt.  All communications shall be sent to the other
party hereto at such party’s address hereinafter set forth on the signature page hereof,
or at such other address as such party may designate by written notice to the
other party hereto.


 


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9.2                               Successors
and Assigns.  This Agreement shall
inure to the benefit of the successors and assigns of the Company and, subject
to the restrictions on transfer herein set forth, be binding upon Pfizer’s
successors and assigns.


 


9.3                               Governing
Law; Venue.  This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware.  The parties agree that any
action brought by either party to interpret or enforce any provision of this
Agreement shall be brought in, and each party agrees to, and does hereby,
submit to the jurisdiction and venue of, the appropriate state or federal court
sitting in Wilmington, Delaware.


 


9.4                               Further
Execution.  The parties agree to take
all such further commercially reasonable action(s) as may reasonably be
necessary to carry out and consummate the transactions contemplated by this
Agreement as soon as practicable, and to take whatever commercially reasonable
steps may be necessary to obtain any governmental approval in connection with
or otherwise qualify the issuance of the Shares.


 


9.5                               Entire
Agreement; Amendment.  This
Agreement, together with the License and Development Agreement, dated as of April 16,
2008, between the Company and Pfizer, constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements or understandings, whether written or oral.  This Agreement may not be amended, modified
or revoked, in whole or in part, except by an agreement in writing signed by
each of the parties hereto.


 


9.6                               Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. 
In the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such provision shall
be excluded from this Agreement, (b) the balance of this Agreement shall
be interpreted as if such provision were so excluded and such that the
objectives contemplated by the parties when entering into this Agreement may be
realized and (c) the balance of this Agreement shall be enforceable in
accordance with its terms.


 


9.7                               Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.


 


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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the day and year first above written.


 


	
   

  	
  AVANT IMMUNOTHERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  119 Fourth Avenue

  
	
   

  	
   

  	
  Needham, MA 02494-2725

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PFIZER VACCINES LLC

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  235 East 42nd Street

  
	
   

  	
   

  	
  New York, NY 10017-5755

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Martin Teicher

  
	
   

  	
  Title:

  	
  Vice President